In re Justice S.

In re Justice S. ^[1]

No. H12CP15014728B

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Juvenile Matters

December 9, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Robert G. Gilligan, Judge

By petition filed with the court on June 9, 2016, the Commissioner of the Department of Children and Families (" DCF") seeks to terminate the parental rights of Fatima M. (" Mother") and John Doe (" Father") as those rights pertain to the minor child Justice S., born February 21, 2015. Proper service of process on both respondents has been confirmed and notice of the trial was properly given in accordance with the applicable provisions of the Connecticut General Statutes and the Practice Book. Counsel was appointed for Mother and the minor child. Despite notice of the proceedings by publication John Doe has never appeared in this action. There is no known action pending in any other court concerning custody of the minor child nor any claim of Native American affiliation. The court finds that it has proper jurisdiction over this matter.

Procedural History

At a hearing held on July 10, 2015, the court removed putative father Terry S. from the pending neglect proceedings based on genetic testing, accepted a written plea of nolo contendre from Mother, adjudicated Justice S. neglected as being permitted to live under conditions injurious to her well-being and committed her to the care and custody of the Commissioner of the Department of Children and Families. (Burgdorff, J.) At a hearing on April 14, 2016, the court approved a permanency plan of termination of parental rights and adoption for Justice; found that the plan was in the best interest of the child and that DCF had made reasonable efforts to effectuate the plan. (Dannehy, J.)

In the termination of parental rights petition, DCF has alleged the following adjudicatory grounds: Ground B-1 (failure to rehabilitate) as to Mother and Ground A (abandonment), Ground B-1 (failure to rehabilitate) and Ground D (no on-going parent child relationship) as to John Doe.

A trial on the petition was conducted on November 3, 2016. Mother was present and represented by court-appointed counsel. Pursuant to In Re Yasiel R., the court advised Mother of her rights including her right to remain silent and the possibility that the court may draw an adverse inference from her failure to testify.

At the conclusion of the first day of trial, a second day for trial was scheduled and conducted on November 8, 2016. Mother did not appear and her counsel reported that counsel was unaware of the reason for Mother's absence and not able to reach her by phone or leave a message since Mother's phone had limited minutes and her voice mail was full.

The court found that Mother had actual notice of the trial date and continued the trial without Mother. The court heard testimony from DCF's witnesses, Ebonie Dawes, a DCF treatment social worker, Dr. Derek Franklyn, a licensed clinical psychologist and Pearlene Martell, a licensed clinical social worker employed by The Community Renewal Team (" CRT"). DCF offered exhibits (Exhibits A, B, C, D E, F, G, H, I, J and K) which were admitted as full exhibits without objection. Neither counsel for Mother nor counsel for the minor child presented testimony or offered exhibits. Counsel for DCF moved for the court to take judicial notice of all prior court proceedings and records relating to Mother's child protection history. The court granted the motion absent objection and took judicial notice of the pleadings and their filing dates, court memoranda of hearings, and prior court rulings and orders in the court files as the same relate to the child protection history of Justice and Mother.

At the conclusion of DCF's evidence, Mother's counsel again reported having received no message from Mother explaining her absence from trial and she was not certain as to Mother's position with respect to her intention to exercise her right to testify on her own behalf. Since the parties had previously scheduled a third day of trial and given the serious nature of a termination of parental rights proceeding and its effect on the rights of Mother and the child, the court kept the adjudicatory phase of the trial open to afford Mother's counsel the opportunity to file with the court by November 14, 2016, a written affidavit together with credible evidence that Mother was prevented from appearing for reasons beyond her control and that Mother wished to offer testimony on her own behalf. DCF was provided the right to contest any such claim, if made by Mother. No such proof was submitted by Mother's counsel as ordered and the court has proceeded to rule on the basis of the evidence admitted through November 8, 2016 and closing argument from all counsel.

Legal Standard

A hearing on termination of parental rights consists of two phases: adjudication and disposition. In the adjudicatory phase, the court must determine whether the proof provides clear and convincing evidence that at least one ground pleaded exists to terminate parental rights as of the date of the filing of the petition or last amendment. See In re Keyashia C., 120 Conn.App. 452, 455, 991 A.2d 1113 cert. denied, 297 Conn. 909, 995 A.2d 637 (2010); In re Javon R., 85 Conn.App. 765, 769, 858 A.2d 887 (2004); In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842 cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991); Practice Book § § 32a-3(b), 35a-7. However, where the ground alleged involves failure of the respondent to rehabilitate " in the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011); In re Jennifer W., 75 Conn.App. 485, 495, 816 A.2d 697 cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); In re Joseph L., 105 Conn.App. 515, 527, 939 A.2d 16 (2008); In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). If at least one pleaded ground to terminate is found the court must then consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child's best interest. See In re Anthony H., 104 Conn.App. 744 756, 936 A.2d 638 (2007). " In the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Luciano B., 129 Conn.App. 449, 479, 21 A.3d 858 (2011); In re Joseph L., 105 Conn.App. 515, 529, 939 A.2d 16 cert. denied, 287 Conn. 902, 947 A.2d 341 (2008). Procedurally, it is permissible to hear evidence as to both adjudicatory and dispositional phases at the same trial without first determining if the state has proven a statutory ground for adjudication before consideration of the dispositional question. See In re Jason P., 41 Conn.Supp. 23, 24, 549 A.2d 286 (1988); In re Juvenile Appeal (84-AB), 192 Conn. 254, 257, 471 A.2d 1380 (1984); State v. Anonymous, 179 Conn. 155, 172-73, 425 A.2d 939 (1979); Practice Book § 35a-7.

Findings

The court was able to closely observe the appearance and demeanor of the respondent Mother and witnesses in the court room and determine the validity, cohesion, and the credibility of their testimony. The court has reviewed and considered the documentary evidence admitted as full exhibits. The court makes the following findings herein by clear and convincing evidence based on an independent assessment of all the credible and relevant testimony and documents admitted to evidence at the trial.

Mother

Mother was born September 23, 1982. She is the oldest of six children and grew up in Hartford. She reports that she experienced " a lot of physical altercations" with peers when she entered middle school which she attributes to peer pressure and stress at home. She also reports that she had " some gender identification issues, " and experienced depression which led to her threatening and attempting suicide. She was hospitalized in seventh grade for two months as a result of her attempted suicide by cutting her wrists and later that year for similar concerns. She reported to Dr. Derek Franklin, who conducted a court-ordered psychological evaluation, that she was prescribed Prozac Risperal and Klonapin to help her with her depression and " aggressive behaviors." (Exhibit G.) She left her mother's home at age eighteen to live with a girl friend with whom she resided for a period of six years.

Mother reports that she was raped at age twenty-one and was not sure whether Jason T. or the alleged rapist was the father of Nashawn. Nashawn lived with Mother and her girl friend for two years until they broke up. At that time Mother left the apartment they shared and moved into a shelter with Nashawn.

In addition to Justice, Mother has three other children, Nashawn M., age 11, Shawn'Na S., age 6, and Omunique S., age 4. The legal guardianships of Shawn'Na S. and Omunique S. were permanently transferred by this court to a relative on March 3, 2015 (Dannehy, J.). Her oldest son, Nashawn M., has resided with his father since an incident whereby Shawn'Na fell out of a second story window and suffered a skull fracture while left by Mother in the care of maternal grandmother.

Mother has a history of smoking marijuana but denies ever smoking in the presence of her children. Mo...